Redburn v City of Victoria, 13-12-00215-CV, (Tex. Civ. App. – Corpus Christi, February 28, 2013).
Redburn purchased two tracts of property in 2004, one of which had a pre-existing concrete culvert which has been part of the City’s Storm Sewer System. After complaints to the City that debris and water from the culvert encroached upon his land, Redburn plugged the culvert with five tons of concrete. Redburn filed suit against first two city employees then later the City to prevent them from entering onto his property to remove the plug. City cross-claimed seeking to force the removal of the plug by Redburn, for civil penalties, for injunction to prevent Redburn from interfering with the culvert in the future, and a declaration regarding the claim of easement by implied dedication. Trial court issued an order for the City requiring removal of the plug and granting the City’s Plea to the Jurisdiction which Redburn appealed. This is still an interlocutory order.
The Court first determined that the trial court erred in dismissing the two individual employees. First, since the city was joined later, the employees cannot take advantage of Tex. Civ. Prac. & Rem. Code §101.106(e)(noting that if the city and employees are both sued, the employees are entitled to be dismissed). Further, despite the City’s assertion that the two employees were sued to prevent acts as employees, the Court determined the assertion was not sufficient and therefore the employees could not take advantage of Tex. Civ. Prac. & Rem. Code §101.106(f)(substitution provision allowing entity to be substituted for employees). Finally, the court determined that since Redburn’s complaint was to prevent the two employees from entering his property “without legal authority” such claims are ultra vires and City of El Paso v HeinrichI, 284 S.W.3d 366 (Tex. 2009) allowed suit against the two employees.
The Court next determined that at first glance it appears claims against the City are barred as the essence of Redburns claims are to prevent trespass and quiet title, which are intentional torts. However, since the City cross-claimed, it has subjected itself to suit and therefore may not have immunity from suit for intentional torts. The court holds that “a governmental entity does not enjoy immunity from suit in the first instance for claims against it that are germane to, connected with, and properly defensive to claims that the governmental entity asserts.” The Court fails to consider Tex. Civ. Prac. & Rem. Code §101.106(b) which is an irrevocable election that if employees are sued, the City is entitled to dismissal.
The Court takes various different case citations out of context in order to reason why the trial court erred. The most dangerous holding from this case is that by filing a counter-claim to declare who (Redburn or the City) has the right to access the culvert, the City waives immunity for monetary damages for trespass. The Court seemed particularly upset that the City counter-claimed and sought civil penalties for damages done to the culvert. It is also dangerous that despite the uncontested assertion that the claims against the two employees were for acts within their course and scope, such an assertion is not sufficient, even if suit can be brought under Heinrich. All-in-all a dangerous opinion for City Attorneys; however it is still an interlocutory matter.
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